19 July, 2008

FOI Act


Freedom of Information Act. Last Monday, Elkin Richardson hosted the Hon Chief Minister on his radio call-in programme “To the Point”. He treated him with all the respect that is his due as the head of our government. At no time did Elkin or any of the callers challenge the Hon Chief Minister, even when he said the most outrageous thing.

One particular exchange caused me concern. It is the subject of this post. Elkin asked the Chief Minister if he did not think it was time for the introduction of a Freedom of Information Act. The Chief Minister sounded as if he had been stunned by this question. He eventually replied with words to the following effect. “But, Elkin, you know that my government does not censure the news. Any radio or any newspaper in Anguilla is free to publish anything at all that they want. We do not need any Freedom of Information Act”. From which it became apparent that the Hon Chief Minister did not have the slightest idea what a Freedom of Information (FOI) Act is. I have kept quiet on the issue up to now. I wanted someone else to do the necessary explaining. However, I have not seen any newspaper, nor have I heard any radio station, attempting to clear up the matter. So, I am obliged to do so now, at the risk of appearing to pick on the chief minister.

The first point is that an FOI Act does not guarantee freedom of the press or freedom from censureship. That freedom is already guaranteed by law. The Constitution contains in section 11 all the guarantee of freedom of expression that we will ever need. We do not need an FOI Act to give that to us.

Freedom of information legislation is also sometimes called “open records” law. In the US it is described as “sunshine” law. The FOI Act is a law which sets rules on access to information or records held by government. Such laws define the legal process by which government information is required to be available to the public. Sweden’s Freedom of the Press Act of 1766 is thought to be the oldest of such laws. Today, over 70 countries around the world have it. Each State of the United States has its own law governing access to public documents of state and taxing entities. That is in addition to the FOI Act which governs records management of documents in the possession of the federal government. Other countries, particularly British Overseas Territories, are working towards introducing such laws.

What FOI legislation does is to alter the burden of proof. Any citizen can find out what is on any file in which he is interested. The burden of proving that the matter should be kept confidential rests on the person who argues that it must be kept confidential. The assumption is that the public has a right to all information kept by government. You have the basic right to ask for and to obtain the information. You do not even have to give a reason why you want the document. But, if the information is not disclosed, a valid reason has to be given. If the reason is unacceptable, you can take it to court for the court to rule on it.

In many countries with FOI legislation, “privacy” or “data protection” laws may be part of the freedom of information legislation.

A related concept is “open meetings” legislation. This allows public access to government meetings, not just to the records of them. In some British Overseas Territories, meetings of the Land Development Commission and even of Executive Council are open to the press and public, within reason. In Anguilla, by contrast, everything done by every government agency is shrouded in secrecy.

Under our present system, each public servant swears an oath under the Official Secrets Act on becoming a public servant. It is this oath which is probably the cause of the problem that this legislation seeks to cure. By this oath of secrecy, the civil servant essentially swears never to reveal to anyone any matter that he or she learns about in the course of his or her duties. Everything in government becomes secret. This secrecy is then used as a cover for committing acts of prejudice and injustice upon the ordinary citizen. A public servant can put a false and prejudicial note on anyone’s file that will forever stop that person from progressing, in the sure knowledge that the victim will never get to find out about it. The result is that the island is overrun by half-crazed theories about what is going on in government.

I hope that the next time Elkin asks about the Freedom of Information Act, he will not be satisfied with an answer that is completely unrelated to the question.

Related previous posts:

Freedom of Information: Guest Editorial 5

Land Development Control Committee

Open Government

Too Much Information Can Be Dangerous for your Health


11 comments:

  1. The Overseas Territory of St. Helena is not a model of open government. But still, they have open ExCo meetings, with the option of going into executive session if they intend to discuss confidential matters.

    The Governor (who has far more responsibility and authority than any Governor in the Caribbean Overseas Territories, gives a detailed summary of what ExCo did, and it is printed in the paper that Friday.

    I note that the top story in our newspaper this week is a fawning advertorial for Sheriton Estates, which seems to have changed its name to Sheriva. I assume this is because the Sheraton Hotel people threatened them with an action for infringement, as some of us expected.

    The other top story is about a disaster simulation exercise involving "a likely mishap in a hurricane" in which an Anglec distribution pole with a live transformer lands on an occupied car. The gushing Disaster Preparedness Director didn't seem to know that distribution power is cut off during a hurricane, and none of the Angec linemen seemed willing to ruin her day. In the picture of the "simulation exercise in progress" one of the smiling linemen is leaning on the car that's supposed to have twenty-something thousand volts going through it.

    Who needs freedom of information when we have such great entertainment?

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  2. Cayman Islands have already passed their law since late 2007. They have provided a 14 month roll-out period for all government departments to become fully trained in how to respond to requests for information from the public:
    Cayman Islands

    The Commonwealth Human Rights Initiative published a useful article on FOI legislation initiatives in the Caribbean urging reform in St Vincent and the Grenadines:
    St Vincent and the Grenadines

    There is even a blog about freedom of information legislation in the Commonwealth:
    http://wordpress.com/tag/freedom-of-information/
    Commonwealth

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  3. The government website says the Chief Minister is the Minister for Labour, Lands and Surveys, Environment, Immigration, Information & Broadcasting, and Physical Planning. Underline minister for information. As Minister of INformatin, he has no excuse for not knowing about Freedom of information act. His PS Foster Rogers has put several memos about it on his desk. All he had to do was read them.

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  4. One of the memos Foster put on the Chief's desk must have been the report of the Constitutional Review Commission. It clearly explains freedom of information legislation. Our leader appearantly failed to read this report as well - or failed to understand it, although it was a model of good writing and clarity. He lectures us about checks and balances, but doesn't seem to know what they are or how they work. He lectures us about "full internal self-government" after Minister Meg Munn told him in plain words that this was unacceptable and the UK would have no part in it.

    And now this same man is leading our constitutional review exercise, with an unshakeable belief in his own righteousness.

    I used to think he was better - or at least less worse - than Hubert, but he proved me wrong this week in a disgusting display of the same gutter politics as we're used to from Hubert and Haydn, by his use of the race card against Don Mitchell and Harry Wiggin.

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  5. "He lectures us about "full internal self=government" after Minister Meg Munn told him in plain words that this was unacceptable and the UK would have no part of it"....

    Well good for the Chief Minister! At least he seems to have more knowledge of basic human rights than the highly educated Meg Munn.

    The British are not entitled to be hypocritical about HUMAN RIGHTS and the Chief Minister is correct. The British will be hoisted on their own hypocritical petard- HUMAN RIGHTS- The right to self -government is democracy 101. Anguillians want a discussion with the British about Human Rights.

    By the way, what Don Mitchell has failed to mention is that the Governor is the chairman of the Executive Council. So, If there is secrecy, the correct person to blame is the British governor.

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  6. Britain should be pushing all the OTs to implement meaningful FOI legislation. There has been some suggestion of this in an EU context, but so far, the UK keeps a hands-off approach.

    I say "meaninful" since there are many ways in which the operation of an FOI law can be undermined, in effect nullifying its effect. High fees can be imposed, implementation neglected, the appeals mechanism can lack independence, access exemptions can be written too generous, records management can be so bad that access is physically not possible, civil servants can resist the law in practice, etc.etc. There are examples of each of these around the world, some also in the Caribbean region.

    I was closely associated with the development of FOI in Cayman, and that country's effort is a pretty remarkable example of a sitting government actually not forgetting one of its election promises. FOI is always popular with the opposition, almost never with a sitting government. The UK's (actually England-Wales-Northern Ireland, since Scotland has its own ACt) own FOIA is another positive example of this.

    Another way in which FOI can be rendered meaningless is if it is seen as a panacea. In reality, it can only operate well in the context of a government bureaucracy that is willing to undergo the necessary "change of culture", from a culture of secrecy to one of genuine openness. That is not an easy task.

    Also, what is typically underestimated is the necessity for careful implementation. Access to information in reality requires good record keeping, not only the retention of records, but also the systematic "creation" of a record of all decisions, transactions, etc. in the first place. Without good Records Management, therefore, there is often simply nothing to provide access to, or finding it may be too hard. The UK's implementation took 5 years because their RM needed to be brought up to speed.

    In other words, as always, it takes much more than a law. It is the intention behind it that must be carefull understood and implemented.

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  7. Concern AnguillianJuly 20, 2008 10:01 pm

    The UK Freedom of Information Act 2000 provides statutory rights for those requesting information together with a strong enforcement regime. The main features of the Act are a general right of access to information held by public authorities in the course of carrying out their public functions, subject to certain conditions and exemptions.

    In Part 1, where information is exempted from disclosure there is a duty on public authorities to disclose where, in the view of the public authority, the public interest in disclosure outweighs the public interest in maintaining the exemption in question.
    However, Part II establishes a lengthy list of areas where information is exempted from disclosure. These include all work done by security forces; defence; communications with the Royal family; all political advice; international relations; relations between parliaments and assemblies of the UK; Scotland, Wales and Northern Ireland; the economy; investigations by the police and customs and excise; courts records; commercial information; health and safety; and all personal information and information provided to government in confidence.

    These categories constitute a catch-all exemptions allowing information to be refused without real evidence of any harm. The public will not normally be allowed information that could ‘prejudice’ government unless Whitehall bodies or other public authorities decide to release it under discretionary powers. In order to justify refusal to disclosure there is only a requirement to show likely prejudice rather than substantial harm test that had been recommended in the 1997 White Paper. This would have place a much greater burden on the executive.

    There is an Information Commissioner (http://www.ico.gov.uk/) and a new Information Tribunal, with wide powers to enforce the rights created. There is a duty imposed on public authorities to adopt a scheme for the publication of information. The schemes, which must be approved by the Commissioner, specify the classes of information the authority intends to publish, the manner of publication and whether the information is available to the public free of charge or on payment of a fee.

    Taking all into consideration, including our relationship with the UK, do you see any contradictions? Don’t you think that the Chief Minister was simply diplomatic rather than been ignorant or an idiot?

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  8. NO need to get too technical here.

    There are a number of successful FOI models around the world, not just the UK one, that work fine. amny countries overcame the sort of caveats that I described above.

    If anything, the UK is sometimes critisised for (among other things) having too many exemptions, that is, reasons public authorities can use to deny access to information. All models have the same principles and basic checks and balances built in, e.g. an independent appeal mechanism before an applicant has to take his case to the courts.

    I can't say which of the two answers is correct Concern Anguillian! But what is diplomatic about giving an irrelevant answer?

    I think the CM sometimes puts on his "man of the people" role, and maybe that involves pretending a lack of sophistication, or exaggerating his ignorance on some point. I don't think he is an idiot.

    If he were a diplimat, on the other hand, he could have said: "we don't need FOI, we already have an open system of government in Anguilla". Or even better: "we're working on bringing FOI to Anguilla to make sure all future governments will be just as open as we are". Now I'm dreaming....

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  9. HUH?!

    Who are you people? Ultra -sophisticated foreigners talking ultra-sophisticated crap?

    Anguilla is not a SOVEREIGN NATION like BRITAIN, we do not have SECRETS.

    All we want is a little more discussion of the issues with the people BEFORE our resourses are "given away" by government to foreigners for so called developments so that we can get a "job" which does not pay enough to give us food!

    The anguilla government does not plot illegal wars and it does not engage in cold war politics and colonial games and oppression of other peoples.

    We have no dark secrets hiden in old files!

    WE want to know simple things like when there is a plan to import one thoussnd Asian Workers, we are at least informed of it before they arrive at the airport!

    A weekly or even montly idea of what is going on in the executive council-the peoples' business -would ensure that we are kept INFORMED about what is happening in our island and would give us an opportuhnity to voice our opinions before the deed is done!

    The first Anonymous comment about what happens in St.Helena is right on point- open exco meetings, with the option of going into executive session if they intend to discuss confidential matters and a summary of what Exco did, printed in the newspaper would be an excellent start.

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  10. We expected better from this blog.

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  11. NATIONAL POLICY

    It is recommend that Anguilla introduce freedom of information legislation. It is also recommend that Anguilla take steps to improve the public accounting and auditing capability,by making better us of local expertise and that the Public Accounts Committee should make more use of ex-officio members.

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